June 20, 2012

Plaintiff Placed On Notice of Fee Exposure; Ability to Pay Was Considered.

Generally, plaintiffs losing FEHA cases do not face fee or costs exposure, except for an important BUT. BUT they will face fee exposure if the plaintiff’s action is found to be frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. (Cummings v. Benco Building Services, 11 Cal.App.4th 1383, 1387 (1992).)

Well, plaintiff in Rickards v. United Parcel Service, Inc., Case No. B234192 (2d Dist., Div. 4 June 19, 2012) (partially published; fee discussion not published) fell within that important BUT exception, with the lower court awarding fees against him for a FEHA suit found frivolous with respect to an individual sued in a broader suit against UPS.

The fee award in favor of the individual was sustained on appeal. The appellate court found that the disability-based harassment claims against the individual were groundless and maintained in an attempt to avoid removal to federal court--a tactical decision which can always get a losing plaintiff into trouble. Beyond that, defense counsel for the individual placed plaintiff on notice that continued prosecution of the case could be problematic, which it ultimately was found to be. The lower court did consider plaintiff’s claim of being impecunious, so that was not in play. The suggestion that the case had to be found frivolous against all defendants was rejected, because no authority was provided for such a broadbrush proposition. Finally, the appellate court would not extend the fee award liability against plaintiff’s counsel, because the issue was not raised in the trial court and no authority suggests this could be the case unless there was some independent basis such as bringing a frivolous appeal--something not raised in the case at all.